The Volokh Conspiracy

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Asymmetrical Nationwide Injunctions

Progressive judges consistently issued nationwide injunctions against President Trump. Conservative judges are increasingly issuing limited injunctions against President Biden.


In early 2017,  I tried to track all of the nationwide injunctions entered against the Trump Administration. I quickly abandoned that effort. There were far too many to record. As best as I can recall, almost every injunction was nationwide in scope. I don't recall any judges limiting the injunction to the parties. Over the ensuing four years, there were non-stop debates about the propriety of non-party injunctions. In time, some district courts began to impose limits on injunctions–often at the nudging or circuit courts. But the norm remained that injunctions were nationwide in scope.

Fast forward to 2021. In at least two high-profile cases, conservative judges have limited the scopes of their injunctions. First, Judge Cam Barker declared the eviction moratorium unconstitutional. But he did not issue a nationwide injunction. Indeed, he limited his judgment to the named parties. DOJ–correctly in my view–has continued to enforce the policy while the appeal is pending.

Second, a panel of the Sixth Circuit declared the prohibition on bump stocks unlawful. (Co-Blogger Jon Adler wrote about the decision here). But Judge Batchelder, joined by Judge Murphy, limited the scope of the injunction to the named parties, within the four states of the Sixth Circuit:

However, we do not decide the scope of the injunction, except to say that the scope may not exceed the bounds of the four states within the Sixth Circuit's jurisdiction and, of course, encompasses the parties themselves. Though we disagree with the ATF's position, the ATF prevailed before the Tenth Circuit, as well as the D.C. Circuit Court, from which decision the Supreme Court denied certiorari. See Guedes, 920 F.3d at 6, cert. denied 140 S. Ct. 789 (2020). If we were to permit a universal injunction (also frequently called a "nationwide injunction"), we would create an absurd situation in which the ATF must prevail in every single case brought against the Final Rule in order for its interpretation to prevail. We do not think that it is within our authority to overrule the decision of a sister circuit (or for a district court within our circuit to do so). See Nixon, 76 F.3d at 1388 (holding that we are not bound by "the views of our sister circuits"). 

While this will create a circuit split on the meaning of § 5845(b), there is value in having legal issues "percolate" in the lower courts. See CASA de Md., Inc. v. Trump, 971 F.3d 220, 260 (4th Cir. 2020) ("[N]ationwide injunctions limit valuable 'percolation' of legal issues in the lower courts. . . . And the value of percolation is at its apex where, as here, 'a regulatory challenge involves important or difficult questions of law.'" (quoting L.A. Haven Hospice, Inc. v. Sebelius, 638 F.3d 644, 664 (9th Cir. 2011)). The Supreme Court has noted that it is often "preferable to allow several courts to pass on a given [issue] in order to gain the benefit of adjudication by different courts in different factual contexts." Califano v. Yamasaki, 442 U.S. 682, 702 (1979). Indeed, Justice Gorsuch, in his concurrence in the denial of certiorari for the Guedes case, stated that: "[O]ther courts of appeals are actively considering challenges to the same regulation. Before deciding whether to weigh in, we would benefit from hearing their considered judgments[.]" Guedes, 140 S. Ct. at 791 (Gorsuch, J., concurring in denial of cert.). The short-term uncertainty and disunity created by percolation is justified by its producing a more thorough review of the issue, which in turn should provide a stable, more accurate body of law in the long run. See CASA de Md., 971 F.3d at 260 ("Nationwide injunctions limit dialogue in the lower courts, favoring quick and uniform answers to the more deliberate—and likely more accurate—method of doctrinal development that is intended under our judiciary's very design."). For these reasons, we would not purport to issue a universal or nationwide injunction, and we otherwise leave the issue of the scope of the injunction to be briefed by the parties and decided by the district court. 

This position is mostly right. If the Plaintiffs happen to travel outside those four states, they should still be protected. A court's authority is not cabined by geography; authority is cabined by parties.

As it turns out, the eviction and bumpstock policies were actually created by the Trump Administration. Yet, the Biden Administration can continue to enforce these policies for the foreseeable future.

We are seeing an asymmetry of injunctions. Progressive judges, who pushed theh boundaries of their authority, routinely issued nationwide injunctions. In turn, those decisions prompted immediate intervention by the Supreme Court on the shadow docket. However, Conservative judges, who are likely to enjoin a policy from the Biden administration, will limit the scope of those injunctions. As a result, the administration can continue to enforce those policies until the Supreme Court gets around to intervening it. And, as the number of injunctions decrease, there will be fewer opportunities for the Court to act through the shadow docket. Plus, since there are fewer nationwide injunctions, the Court will not have an opportunity to decide whether those injunctions are valid.

I suspect the sturm und drang about the shadow docket may quiet down over the next few years.